Judgment 1. Heard counsel for the parties. 2. The two petitioners have been sailing in the same boat for a long time. This is second round of litigation, in which petitioner, Baleshwar Mishra as well as Sheo Kumar Singh have been compulsorily retired invoking the powers under Rule 29(B) of the Service Conduct and Disciplinary Rules of Bihar State Food and Civil Supplies Corporation Ltd. 3. The petitioner, Baleshwar Mishra was earlier dismissed from service for certain charges of omission and commission which basically related to the shortfall in the stocks under the depot where he was working at the relevant time. This order of termination came to be challenged in C.W.J.C. No. 8180 of 2001. In that case after a detailed hearing the High Court vide its order dated 5.2.2003 set aside the order of dismissal passed against Baleshwar Mishra. One of the reasons why the High Court quashed the order of dismissal of Baleshwar Mishra was that a co-proceedee, namely, Sheo Kumar Singh, the second petitioner, was let-off with a minor punishment. This order of the Single Judge came to be upheld in L.P.A. because in L.P.A. No. 236 of 2003, the Division Bench refused to interfere with the order of the Single Judge. 4. It is relevant to quote the operative part of the order of the Single Judge dated 5.2.2003: "In the result, this application is allowed and the order impugned as contained in Annexure-12 is set aside and the matter is remitted back to the authorities concerned for fresh consideration of the matter in accordance with law, in the light of the observations made in the foregoing paragraphs. There will be no order as to cost." 5. In other words, after learned Single Judge set aside the order of termination the matter was remitted back to the authorities for afresh consideration in accordance with law. The petitioner, Baleshwar Mishra, thereafter joined the Corporation and within a month and a half the respondent authorities relying on the earlier material decided to invoke Rule 29(B) of the Service Conduct and Disciplinary Rules to compulsorily retire both Baleshwar Mishra as well as Sheo Kumar Singh. This decision was probably taken this time to bring parity between the two. 6. This decision was probably taken this time to bring parity between the two. 6. The main contention of the counsel for the petitioners is that the decision taken in terms of Annexure-16 which is the impugned order is illegal and is in conflict with the Rules of the Corporation itself. Their submission is that before the Corporation formulated its own Service Conduct and Disciplinary Rules, which was brought into effect from 1.6.2001, the Corporation had adopted the Bihar Service Code and other Rules in so far as the applicability of the same was concerned with regard to their employees. From 1.6.2001 the Corporation formulated its own Rules which was brought into effect immediately. While the Board of the Corporation adopted the said Rule, it was also notified in the same said Rule that, "Any pending action initiated under previous rules shall be concluded under the said rules". It further says that, "All policies, orders and resolutions of the Board regarding service conduct and disciplinary rules are hereby excluded or shall stand repealed". 7. The first round of departmental proceedings was initiated sometime in the year 1996. It ultimately culminated into an order of punishment on both the petitioners. In case of Baleshwar Mishra, it was dismissal and in the case of Sheo Kumar Singh recovery of the amount fixed upon his head. Therefore, this proceeding was conducted under the Bihar Service Code as the Disciplinary Rules of the Corporation had not come into effect. In terms of the notification which had been quoted above any proceeding against an employee would be conducted against him in terms of the Disciplinary Rules which came into effect from 1.6.2001. As for the past proceedings the old Rules had to be applied to conclude the pending or on-going disciplinary proceeding. 8. Since the High Court not only interfered with the order of dismissal of Baleshwar Mishra by setting it aside but also remitted the matter back to the authorities for fresh consideratioin. In other words, the earlier proceeding continued and it was only the punishment which was interfered with. 8. Since the High Court not only interfered with the order of dismissal of Baleshwar Mishra by setting it aside but also remitted the matter back to the authorities for fresh consideratioin. In other words, the earlier proceeding continued and it was only the punishment which was interfered with. If that was the position then in terms of the own notification and the rules made in this regard by the Corporation, the Corporation ought to have concluded the proceedings against the petitioners by relying upon the earlier Bihar Service Code and not invoking powers under Rule 29(B) of the Service Conduct and Disciplinary Rules, 2001. That being the settled position this Court has no hesitation in holding that the authorities have erred in passing the. order of compulsory retirement against the petitioners by invoking Rule 29(B), which was not applicable in the case of these petitioners. Wrong exercise of power under Rule, which is not applicable makes the order itself an non est order and, therefore, is fit to be set aside. 9. Learned counsel for the respondents, however, submitted that this was a case of compulsory retirement and there was sufficiency of materials available with the authorities and in that view of the matter the decision taken by the respondents cannot be faulted with. He has relied on two decisions reported in the case of M,L. Binjolkar vs. State of M.P., (2005)6 SCC 224 as well as in the case of Ramashish Singh vs. B.S. Food & Civil Supplies Corpn. Ltd., 2003(3) PUR 724. 10. There is no dispute with regard to the propositions, which have been laid down in the two judgments and have been cited by the respondents. The power of compulsory retirement can be invoked by an employer in a given circumstance and there are very limited area under which the Court can sit in appeal or interfere with the same but then those cases have no relevance in the present case because here the basic question which have been raised by the petitioners is the exercise of powers by the authorities which was otherwise not available to them according to their own decision. 11. A Rule which was not available in the cases of the petitioners cannot be made a basis for passing the impugned orders against them. 11. A Rule which was not available in the cases of the petitioners cannot be made a basis for passing the impugned orders against them. If the authorities would have continued to deal with the matter under the Bihar Service Code and would have passed the necessary orders under the Bihar Service Code, may be the challenge which has been thrown by the petitioners would not have been there. But since respondents have committed their own folly by relying on a Rule which according to them was only prospective in nature and would have application to new matters only, they have to pay the price lor the erroneous decision or non-application of mind. 12. In the given situation, this Court has no option but to quash the order dated 24.11.2003 contained in Annexure-16. 13. These writ applications are accordingly allowed. However, there shall be no order as to costs.